Evans v. Suisun Police Department, et al.,

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 03/20/18 RECOMMENDING that this action be dismissed for failure to state a claim and for lack of prosecution. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD ANTHONY EVANS,

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No. 2:17-CV-1889-KJM-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

SUISUN POLICE DEPARTMENT,
et al.,

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Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).

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I. PLAINTIFF’S ALLEGATIONS
Plaintiff names the Suisun Police Department and officers Carlock, Brown, and
Hamilton as defendants. Plaintiff claims:
Lisa Carlock, Stephen Brown, and Bryan Hamilton concealed,
misrepresented, and falsified evidence as testifying officers at my
preliminary hearing of 7/26/16. Their acts effected my hearing and bound
me over for trial, when the proper and accurate evidence would have
dismissed the case at the prelim. stage. Case 319582.
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A review of Solano County Superior Court records indicates that plaintiff was convicted of a

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felony in People v. Evans, Case No. FCR319582, on April 10, 2017.1

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II. DISCUSSION

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A.

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Screening
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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The court may take judicial notice pursuant to Federal Rule of Evidence 201 of
matters of public record. See U.S. v. 14.02 Acres of Land, 530 F.3d 883, 894 (9th Cir. 2008).
Thus, this court may take judicial notice of state court records, see Kasey v. Molybdenum Corp.
of America, 336 F.2d 560, 563 (9th Cir. 1964), as well as its own records, see Chandler v. U.S.,
378 F.2d 906, 909 (9th Cir. 1967).
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When a state prisoner challenges the legality of his custody and the relief he seeks

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is a determination that he is entitled to an earlier or immediate release, such a challenge is not

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cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ

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of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda,

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131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir.

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1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief

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alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s

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underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in

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imposition of a sanction affecting the overall length of confinement, such a claim is not

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cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal,

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by habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477,

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483-84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to

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malicious prosecution action which includes as an element a finding that the criminal proceeding

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was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997)

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(concluding that § 1983 claim not cognizable because allegations of procedural defects were an

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attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding

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that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and

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not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005)

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(concluding that § 1983 action seeking changes in procedures for determining when an inmate is

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eligible for parole consideration not barred because changed procedures would hasten future

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parole consideration and not affect any earlier parole determination under the prior procedures).

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If a § 1983 complaint states claims which sound in habeas, the court should not convert the

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complaint into a habeas petition. See id.; Trimble, 49 F.3d at 586. Rather, such claims must be

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dismissed without prejudice and the complaint should proceed on any remaining cognizable

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§ 1983 claims. See Balisok, 520 U.S. at 649; Heck, 512 U.S. at 487; Trimble, 49 F.3d at 585.

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Plaintiff alleges that his criminal case would have been dismissed at the

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preliminary hearing but for the defendants’ actions. Thus, success on his claim necessarily

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implies the invalidity of his criminal conviction. Given that there is no indication that plaintiff’s

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conviction has been invalidated or set aside, the claim is not cognizable.

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B.

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Failure to Prosecute
On October 11, 2017, the court directed plaintiff to show cause in writing within

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30 days why this action should not be dismissed for failure to state a claim. Plaintiff was warned

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that failure to respond could result in dismissal of the entire action. See Local Rule 110. To

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date, plaintiff has not responded to the court’s order to show cause.

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The court must weigh five factors before imposing the harsh sanction of

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dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.

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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's

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interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3)

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the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,

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46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an

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appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.

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See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is

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appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,

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1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to

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comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992).

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Having considered these factors, and in light of plaintiff’s failure to respond to the

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court’s October 11, 2017, order to show cause, the court finds that dismissal of this action is an

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appropriate sanction.

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III. CONCLUSION

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Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Based on the foregoing, the undersigned recommends that this action be dismissed
for failure to state a claim and for lack of prosecution.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: March 20, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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